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Rodriguez v. Devcon Enterprises, Inc.

CASE NO. 2244 CRB-3-94-12

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

JUNE 28, 1996

VALENTIN RODRIGUEZ

CLAIMANT-APPELLANT

v.

DEVCON ENTERPRISES, INC.

EMPLOYER

and

ITT HARTFORD

INSURER

RESPONDENTS-APPELLEES

APPEARANCES:

The claimant was represented by James E. Swaine, Esq., 2 Whitney Ave., Suite 700, New Haven, CT 06510.

The respondents were represented by Jason M. Dodge, Esq., Pomeranz, Drayton & Stabnick, 95 Glastonbury Blvd., Glastonbury, CT 06033.

This Petition for Review from the December 9, 1994 Finding and Award of the Commissioner acting for the Third District was heard October 27, 1995 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners Roberta Smith Tracy and Amado J. Vargas.

OPINION

JESSE M. FRANKL, CHAIRMAN. The claimant has petitioned for review from the December 9, 1994 Finding and Award of the Commissioner acting for the Third District. He argues on appeal that the commissioner erred in not including the cost of his group health benefits and the value of his apartment in the calculation of his average weekly wage under § 31-310 C.G.S. We affirm the trial commissioner’s decision.

The claimant sustained compensable injuries on January 19, 1993, which were accepted by his employer, Devcon Enterprises, Inc. The claimant sought to increase his benefits by including in his compensation rate the $884 monthly rental value of an apartment that was provided to the claimant by Devcon, who paid $551 per month of the rent, and the United States Department of Housing and Urban Development (HUD), who paid the remaining $333. The respondents agreed that their $551 monthly payment should be included in the claimant’s compensation rate, but did not agree that the HUD payment should also be included. The claimant also sought to have the value of his medical coverage added to his compensation rate, which the respondents opposed.

The trial commissioner’s findings coincided with the respondents’ position. He concluded that the $551 monthly payment should be factored into the claimant’s wages under § 31-310, but not the $333 per month that HUD paid under “Section 8.”1 The commissioner also ruled that the premium payments Devcon made for the claimant’s health coverage should not be included in his compensation rate. The claimant has appealed from that decision.

We turn first to the issue of the $333 monthly rental subsidy from HUD. Pursuant to § 31-310, a claimant’s average weekly wage is based upon “the total wages received by the injured employee from the employer in whose service he is injured.” The statute allows the inclusion of other amounts only in concurrent employment situations and in cases where the claimant is a trainee or apprentice receiving a subsistence allowance from the United States because of war service. As neither of those circumstances is alleged here, we only need to focus on the language quoted above in deciding this issue.

The claimant argues that Devcon provided him with a rent-free apartment as part of his employment contract, and that the value of that rent was $884.00 per month. Because the claimant received a benefit worth $884 per month, and would have had to secure his own housing absent the provision of the contract that supplied him with an apartment, he contends that the entire value of the apartment should be included in the compensation rate calculation. This argument ignores the fact that § 31-310 bases the benefit rate on the total wages that the employee receives from the employer.

There is no dispute in this case that only $551 of the claimant’s monthly rent was actually paid by the employer. Cases such as Galpin v. Joyce Moving & Storage, Inc., 11 Conn. Workers’ Comp. Rev. Op. 31, 1241 CRD-5-91-6 (Feb. 26, 1993) (additional remuneration received by claimant while on loan from employer to other businesses within meaning of § 31-292 should be included in wages), and Matey v. Dember, 5 Conn. Workers’ Comp. Rev. Op. 104, 516 CRD-5-86 (June 14, 1988) (claimant was entitled to receive value of room and board from employer, although remand for hearing on value of that benefit was necessary), do not imply that such a fact is irrelevant. Where a claimant has received a benefit from a source other than his employer, § 31-310 does not generally require that it be included in his wages, although another provision such as § 31-292 or the concurrent employment exception can come into play. See Galpin, supra, 32; Grillo v. Prestige Enterprises, Inc., 13 Conn. Workers’ Comp. Rev. Op. 311, 313, 1704 CRB-1-93-4 (April 25, 1995) (Second Injury Fund is normally liable for pro rata part of compensation rate due to concurrent employment wages). Because no such exception applies to this case, and it is clear that the $333 monthly rental subsidy at issue came from HUD, not Devcon, we hold that its value was properly excluded from the calculation of the claimant’s weekly compensation rate.

We next address the exclusion of the value of the claimant’s medical insurance premiums from his wage computation. Section 31-284b(a) provides, in relevant part:

In order to maintain, as nearly as possible, the income of employees who suffer employment-related injuries, any employer who provides accident and health insurance or life insurance coverage for any employee . . . , shall provide to the employee equivalent insurance coverage . . . while the employee is eligible to receive or is receiving compensation pursuant to this chapter . . . . As used in this section, “income” means all forms of remuneration to an individual from his employment, including wages, [and] accident and health insurance coverage . . . .

At the time of the claimant’s injury, this section was construed to include all Connecticut employers. Subsequently, however, our Supreme Court determined that § 31-284b was unconstitutional as applied to private employers. Luis v. Frito-Lay, Inc., Supreme Court, Docket No. SC 14536 (order, April 27, 1993); see also Civardi v. Norwich, 231 Conn. 287, 298-99 n. 14 (1994). Thus, Devcon is not currently required by the statute to continue the claimant’s insurance coverage while he collects workers’ compensation.

The claimant argues that § 31-284b is irrelevant to the issue here, because the question of federal ERISA preemption is not applicable to the calculation of a claimant’s average weekly wage. He contends that he received the value of single medical coverage as part of his compensation package from his employer, and that said value should now be included in his compensation rate. We disagree. First, the definition of “income” in § 31-284b clearly implies that “wages” are not the same as “accident and health insurance coverage.” It would be inconsistent with that definition to construe the term “total wages” in § 31-310 to include such coverage. See Pascarelli v. Moliterno Stone Sales, 14 Conn. Workers’ Comp. Rev. Op. 328, 2115 CRB-4-94-8 (Sept. 15, 1995).

More importantly, we would be disregarding the spirit of our Supreme Court’s Frito-Lay decision, and the decision of the United States Supreme Court in District of Columbia v. Greater Washington Board of Trade, 506 U.S. 125 (1992), if we were to hold that the claimant should be provided with compensation equivalent to the value of the insurance coverage that § 31-284b provides. This would allow the claimant to circumvent the fact that § 31-284b can not constitutionally be applied to him by effectively requiring the employer to pay the premium directly to the claimant instead, whereupon he could pass it on to the health insurer to maintain his coverage. This board cannot sanction that result. Thus, we must hold that the value of the claimant’s medical benefits was properly excluded from his average weekly wage calculation under § 31-310.

The trial commissioner’s decision is affirmed.

Commissioners Roberta Smith Tracy and Amado J. Vargas concur.

1 Although none of the parties specified the legal basis for the federal rental assistance in this case, we presume that “Section 8” refers to 42 U.S.C. 8, which authorizes housing subsidy programs that are administered by the United States Department of Housing and Urban Development. See, e.g., Housing Authority v. Papandrea, 222 Conn. 414, 417 (1992), citing 42 U.S.C. § 1437f. BACK TO TEXT

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